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State v. Reed

Court of Appeals of Ohio, Second District, Montgomery

May 18, 2018

STATE OF OHIO Plaintiff-Appellee
v.
DERRICK REED, JR. Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2015-CR-2792.

          MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          DERRICK REED, JR., Inmate No. 727-060, London Correctional Institution, Defendant-Appellant-Pro Se.

          OPINION

          WELBAUM, P.J.

         {¶ 1} Defendant-appellant, Derrick Reed, Jr., appeals pro se from the judgment of the Montgomery County Court of Common Pleas overruling his motion to vacate or stay the execution of court costs. For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On June 27, 2016, Reed pled guilty to three second-degree-felony counts of felonious assault. Thereafter, on July 13, 2016, the trial court sentenced Reed to an aggregate term of five years in prison with 411 days of jail time credit. The trial court also ordered Reed to pay court costs.[1] Three months later, on October 12, 2016, Reed moved to stay the execution of all court costs[2] until his release from prison or until he was no longer indigent. Reed, however, did not provide any information regarding his financial situation or an affidavit of indigency.

         {¶ 3} On October 20, 2016, the trial court issued a decision overruling Reed's motion to stay the execution of court costs. In so holding, the trial court indicated that it had reviewed Reed's presentence investigation report ("PSI") and considered his physical and mental health, employment experience, and education. The PSI provides that Reed has an 11th grade education and was enrolled in special education classes. The PSI also indicates that Reed was unemployed at the time of his sentencing, but that he had previously been employed by Kohl's Distribution, Church's Chicken, and Kroger. The PSI further indicates that Reed was 26 years old at the time of sentencing with no mental or physical health issues other than sickle cell anemia. In addition, the PSI noted that Reed has four children and two open cases with the Child Support Enforcement Agency; however, no information was provided concerning how much Reed pays for child support, if any, or whether he has any outstanding balances.[3]

         {¶ 4} Based on the information in the PSI, the trial court found Reed was indigent, but that he had a future ability to pay court costs and a limited present ability to pay. The trial court also found that both the time left on Reed's sentence (3.5 years) and the amount of court costs he owed ($1, 300) were moderate. In light of these considerations, the trial court stated that it would consider a motion for a reduced payment plan, but otherwise overruled Reed's motion to stay the execution of court costs.

         {¶ 5} Instead of moving the trial court for a reduced payment plan or appealing the trial court's decision, approximately eight months later, Reed moved the trial court to either vacate court costs or stay the execution of court costs until he was released from prison. In support of his motion, Reed claimed that the trial court failed to impose court costs at his sentencing hearing and in the corresponding termination entry. Reed also claimed indigency on grounds that he only earned $18.00 per month from his prison job. According to Reed, his earnings were spent on basic hygiene and health products. Reed attached an affidavit of indigency averring the same, which states as follows:

I, Derrick Reed Jr. am incarcerated at the London Correctional Institution located in London, Ohio. As a result of my conviction, I have no income other than my monthly State Pay from the State of Ohio in which is only $18.00 per month. That money is used to purchase my basic hygiene and health products. I therefore state that I am indigent and cannot afford to pay any legal fees associated in the instant case. Affidavit of Indigency (July 25, 2017), Montgomery County Court of Common Pleas Case No. 2015-CR-2792, Docket No. 87.

         {¶ 6} On August 9, 2017, the trial court issued a decision overruling Reed's motion to vacate or stay the execution of court costs. In its decision, the trial court found that it had imposed court costs at the sentencing hearing and noted that Reed could have objected to the costs at that time, but failed to do so. The trial court also noted that it had previously denied Reed's first motion to stay court costs, finding many of the factors supporting that decision still applied. The trial court further indicated that it considered Reed's present and future ability to pay court costs and recognized that Reed had a limited present ability to pay.[4]

         {¶ 7} However, the trial court explained that although Reed's present ability to pay was limited, it was not completely absent since Reed was "paying in installments." Decision and Entry Overruling Motion to Vacate and/or Remit Court Costs (Aug. 9, 2017), Montgomery County Court of Common Pleas Case No. 2015-CR-2792, Docket No. 88. The trial court then noted that the length of time left on Reed's sentence was moderate, and that the amount of court costs owed was "significant but not great." Id. As a result of these findings, the trial court once again indicated that it would consider a reduced payment plan, but overruled Reed's request to vacate or stay the execution of court costs.

         {¶ 8} Reed now appeals from that decision, raising a single ...


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